Overall it is a disappointing report – disability is barely mentioned, but it was clear that we were not the only organisation arguing the concern of how consent is gathered from birth parents with disabilities when their child is removed and placed into the child protective system.

The only positive outcome is that the Adoption Taskforce acknowledged one of Advocacy for Inclusion’s recommendation to explore dispensation of consent provisions in the Adoption Act 1993 to allow the ACT to better respond to the complexity of out of home care circumstances – that is pretty much the only plus but they did argue back at it nonetheless.

One of the disappointing sections is on open adoption (p.11) where they state, “Contemporary adoption practices reflect a shift away from secrecy to open adoptions. All adoptions in the ACT are ‘open’, where the identities of birth parents are made known to children who are adopted and adoptive families. An open exchange of information and/or contact between the child and their birth parents/family is acknowledged as best practice”.

We argued in our submission that this is not actually happening and the birth parents with disability are often left out, particularly in the CYPS processes.

The Directorate has openly defended its consent-process when a child is being considered for adoption, but placed it under on their ‘to look at’ list no less. They argue that dispensation is a legal process by which a court may declare that the consent of a parent is not required for an adoption order to be granted. This is hugely concerning as it basically saying that consent is not needed at all by the birth parent.

Disability is mentioned only p. 19 and Advocacy for Inclusion is quoted:

6.32. A common concern among respondents who commented on the consent process was the perceived lack of focus on support for birth parents. This view was put forward by community advocacy groups, for example:

“We do not see ‘capacity’ as being taken into account when the general consensus of CYPS and the ACT Government is a presumption that a parent with disability is unable to understand or exercise capacity at all.”

6.33. Furthermore, the needs of parents with disability should be supported to enable family restoration, but also with regard to adoption:

“women with disabilities who are parents, or who are seeking to become parents, report difficulty in accessing appropriate information, services and support.”

According the ACT Domestic Adoptions Taskforce, legal grounds for dispensation applications (no consent required) is set out under Section 35 of the Adoption Act 1993. It depends on individual cases, and where disability is court may, by order, nullify consent with reason that the. physical and mental condition of the person is such that he or she is not capable of considering properly the question of whether consent should be given.

A huge concern as we have continuously argue that parents with a disability facing the Child Protection System and have their children removed, should be required an advocate to enable them to make these decisions.

Out of all this, they did acknowledge that a review of the dispensation process is needed as a ‘possible area of reform’ in evaluating how birth parents, including those with disability, received support-focused mechanisms. It should not be considered a possible area of reform, but simply an area of reform alone.

Our submission was acknowledged and quoted on p.24:

6.60. Supporting birth parents to enable informed consent is a message put forward by many respondents. This includes providing education and resources, which are demonstrably effective, to enable a frank and emotionally adept conversation. One respondent commented that, unfortunately:

“there is a lack of suitable information available in Australia, including the ACT, on child-rearing as well as adoption measures for parents making a consenting choice.”

6.61. An element of continuing support includes informing the birth family of progress in the adoption process and confirming with the adoptive family that this has occurred, prior to further contact.

6.62. One respondent reported potential confusion with legislative frameworks in relation to the decision making capacity of parents with a disability. Specifically, the respondent reported disparities between:

“the Adoption Act 1993, the Children and Young Peoples Act 2014 [sic] and the Guardianship and Management of Property Act 1991 where the guidelines between decision-making capacity for a parent with disability, and the role of their guardian are ill-considered and confusing”. This was ours.